Case :-cr-000-rgk Document Filed /0/ Page of Page ID #: 0 SEAN K. KENNEDY (No. Federal Public Defender (E-mail: Sean$Kennedy@fd.org JOHN LITTRELL (No. Deputy Federal Public Defender (E-mail: John_Littrell@fd.org East nd Street Los Angeles, California 00 Telephone ( - Facsimile ( -00 Attorneys for Defendant SERGIO SYJUCO UNITED STATES OF AMERICA, v. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Plaintiff, SERGIO SYJUCO, et. al., Defendants. WESTERN DIVISION NO. CR --RGK REPLY TO GOVERNMENT s OPPOSITION TO MOTION TO DISMISS INDICTMENT FOR DESTRUCTION OF EVIDENCE Defendant Sergio Syjuco, by and through his counsel of record, Deputy Federal Public Defender John Littrell, hereby submits his reply to the Government s Opposition to his Motion to Dismiss Indictment for Destruction of Evidence. Respectfully submitted, SEAN K. KENNEDY Federal Public Defender DATE: November, 0 By /s/ John Littrell JOHN LITTRELL Deputy Federal Public Defender
Case :-cr-000-rgk Document Filed /0/ Page of Page ID #: 0 I. Reply In its opposition, the government admits that the undercover agent failed to preserve any of the outgoing text messages he sent during the -month investigation in this case. The government s excuse for the undercover agent s failure to preserve his outgoing messages from September 0 to May 0 (the first phone was that he lost the phone in a taxi in Manila. Gov. Opp. at, n.. Its excuse for the undercover agent s failure to preserve his outgoing text messages from May 0 to January, 0 (the second phone, was that the undercover phone did not save outgoing text messages, and they are not available on the undercover telephone. Gov. Opp. at. The government does not explain why messages are unavailable on the second phone, and it does not attach a declaration from the agent. It does not rule out the possibility that the undercover agent deliberately lost the first phone, or deleted the messages or altered the settings on the second phone to prevent it from saving outgoing texts. The government says only that there were no messages in the sent box. This explanation is not complete, and it is not convincing. A. The Government s Failure To Provide A Sworn Declaration From Its Agent Is Circumstantial Evidence of The Agent s Bad Faith As the government points out in its opposition, whether or not the agent acted in bad faith in failing to preserve the outgoing text messages is critical to the Youngblood analysis. Accordingly, the undercover agent s knowledge of the potential exculpatory value of the text messages in this case, and his steps to either preserve them or fail to preserve them are the heart of the matter. Yet the government fails to present easily available evidence of the agent s knowledge and intentions with respect to those text messages -- a sworn declaration from him. The government states that there is no evidence that the government intentionally deleted or destroyed outgoing messages to the defendants. Gov. Opp.
Case :-cr-000-rgk Document Filed /0/ Page of Page ID #:0 0 at. Similarly, the government states, without any foundation (save for an e-mail sent from the undercover agent in his undercover persona that the first phone was lost in a taxi cab in Manila. If those statements are true, then the government should submit a sworn declaration affirming them. The e-mails written by the undercover agent throughout the course of this investigation are mostly lies built on the premise the agent s name is Richard Han. An email written by the undercover agent during the investigation is not a substitute for a sworn declaration by the agent as himself. Rather than focus on describing the knowledge and intention of its agent, the government argues that prosecutors have been prompt and generous in satisfying discovery obligations. Gov. Opp. at. The defense disagrees that the prosecution has been generous with discovery. See Dkt. No.. But that misses the point. The fact that the prosecutors may have turned over emails and text messages authored by the defendants, as it is required to do under Rule (a((b, does not excuse the undercover agent s failure to preserve and produce evidence of his own statements, which are not only required by both Rule (a((e because they are material to the preparation of a defense, but also by Brady v. Maryland, U.S. (. It is the undercover agent s bad faith that compels dismissal, not that of the prosecutors. The government also points out that it sent the undercover agent s second phone to a FBI laboratory for analysis, and produced the results to defense counsel. Gov. Opp. at. But the government s forensic report includes no opinion regarding the issue that this motion presents: ( whether or not the undercover agent s phone was capable of storing outgoing text messages, and ( whether or not those outgoing text messages were deleted by the undercover agent (or the settings of the phone were altered such that the outgoing text messages were not preserved. Finally, the government argues that its agent did not show bad faith, but only bad judgment, in failing to select a device, if available, that had more memory. Gov. Opp. at. But the memory of the second phone is not the issue. It was, after all, capable of storing hundreds of incoming text messages spanning a period of several
Case :-cr-000-rgk Document Filed /0/ Page of Page ID #: 0 months, so there is no reason to believe that it was incapable of storing a similar number of outgoing text messages. The issue is what happened to the outgoing text messages. If the agent deleted the messages, or altered a setting on the phone so that they would not be saved in the phone s out box, then the agent is to blame, not his phone. The government s forensic analysis fails to answer these questions. B. The Exculpatory Value of the Outgoing Texts The government contends that there is no hint of exculpatory evidence in the emails that it has already produced to the defense, and therefore, there must be no exculpatory value to lost or destroyed text messages. Gov. Opp. at. But even if it were true that the emails authored by the agent did not contain exculpatory evidence, that does not prove that text messages would not prove to be exculpatory. Because text messages can be sent instantly, from anywhere, they are more akin to an informal conversation than an email. And the statements the undercover agent made in his informal conversations with the defendants are clearly exculpatory. For example, on January, 0, when he picked up the defendants from the airport in Los Angeles, the undercover agent mocked Syjuco, who he calls Yogi, saying that he is going to take Syjuco to Hollywood, because there s a lot of gays out there. Exhibit C (audio-enhanced excerpts from //0 audio recording at Track. When Syjuco protested that he liked girls, and in particular, Russian girls, the agent responded by saying Russian girls or Russian boys! Id. In the same recording, the undercover agent is heard discussing a prostitute named Sofia from Classmates. Id. Classmates is a brothel in Manila, like Air Force One. See http://classmatektv.thegentlemansclub.com.ph/main (visited on line on October 0, 0. The agent asks Syjuco if he tried Sofia from Classmates. (Syjuco says that he did not. Id. In context, the agent s comment can only be understood as an inquiry as to whether Syjuco paid Sofia to have sex with him. Later that night, as the undercover agent was driving the defendants to two strip
Case :-cr-000-rgk Document Filed /0/ Page of Page ID #: 0 clubs in the United States that he had chosen: Spearmint Rhino and Deja-Vu, he again singles out Syjuco and implies that he is gay. The agent says: We re going to drink a little bit. We re going to go to places. I know Arjyl is excited. I know he likes girls. I know Arvi likes girls too. Yogi? [laughter]. While we re having a good time, Yogi s going to be waiting in the car. Id. at Track. There is no reason to suspect that the agent would be less candid in his text messages than he was in his informal conversations with the defendants. The government points out that there are also text messages from the defendants which, read in isolation, weaken the defense case. See Gov. Opp. at. But this makes the lost or destroyed text messages authored by the undercover agent even more important. If the government is permitted to present to the jury only the incoming text messages, which are harmful to the defense, but none of the outgoing text messages, which are potentially very helpful to the defense, the jury will hear only half of the story -- the half that favors the government s case. C. There Is No Substitute For the Actual Text Messages Lost By the Agent The government argues that because the defendants themselves were the recipients of those texts, they have information about what those messages contained. Gov. Opp. at. But this argument presupposes ( that the defendants remember exactly what the government s text messages contained, ( that they wish to testify, and ( that a jury would believe their characterization of what the text messages said. Even assuming that the defendants could recall the precise statements of the agent in his text messages, the defendants should not be forced to waive their constitutional right to remain silent as a result of the government s bad faith destruction of evidence. See Griffin v. California, 0 U.S. (. And even assuming that the defendants wished to testify in their own defense, a jury may doubt their characterization of the undercover agent s text messages. Many jurors would
Case :-cr-000-rgk Document Filed /0/ Page of Page ID #: 0 not want to believe that an agent of the United States government would taunt, humiliate, and mock the defendants as he did. Jurors may not want to believe that the undercover agent solicited prostitution of minor girls. No doubt the government would wish to cross-examine the defendants to undermine their testimony. The government has also suggested that it does not believe that it seized the cellular phones that the defendants used to communicate with the undercover agent, and thus the messages sent by the undercover agent should be available on the defendants own cellular phones. The government has made the phones it seized from the defendants available, and a defense expert has searched them. The defense has been able to recover no text messages from the undercover agent on any the phones provided. The defense is investigating the possibility that other phones in the Philippines may have been used to communicate with the undercover agent, but it has, to date, been unable to obtain those phones in order to have them searched. If the defense is able to recover text messages sent by the undercover agent by other means, it will certainly do so. If not, then that should not be held against them. The defendants, who did not know that they were the target of a criminal investigation, had no obligation to preserve text messages sent to them. The undercover agent, on the other hand, clearly did have an obligation to preserve those messages. D. Evidentiary Sanctions In the event that the Court does not dismiss the indictment, it should, at minimum, impose severe evidentiary sanctions against the government. District courts have substantial discretion to impose evidentiary sanctions where the government destroys, or allows to spoil, potentially exculpatory evidence and where the government's conduct prejudices a criminal defendant. See United States v. Belden, F.d (th Cir. ; see also United States v. Cooper, F.d, (th Cir.. Courts are given such discretion to avoid the impairment of judicial integrity that would occur if the prosecution were allowed to manipulate court
Case :-cr-000-rgk Document Filed /0/ Page of Page ID #: 0 processes, and protective ruling or sanctions may be required both to insure a fair trial in a specific case and to deter future violations. United States v. Loud Hawk, F.d, (th Cir. (en banc, overruled on other grounds by United States v. Grace, F.d (th Cir. 00. The usual sanction when the government has lost or destroyed evidence is suppression of secondary evidence. United States v. Jennell, F.d, (th Cir. (citations omitted. Whether a court should impose sanctions for destruction of evidence depends on a balancing of the quality of the Government's conduct and the degree of prejudice to the accused. Loud Hawk, F.d at. When the prejudice of the destruction of evidence to the defendant is severe, suppression or other sanctions would be appropriate without regard to the good faith or culpability of the Government. Id. If the Court does not dismiss this indictment for the reasons set forth above, then at minimum, the Court should impose the following evidentiary sanctions: First, the government should not be permitted to introduce into evidence any of the text messages its undercover agent received from the defendants. Second, the jury should be instructed that the undercover agent had the duty to preserve his outgoing text messages, and that it may infer from his failure to do so that the contents of those text messages would not have been favorable to the government. The defense will submit a proposed instruction prior to trial. Third, if the defendants elect to testify about the contents of the undercover agent s text messages, the Court should strictly limit the government s crossexamination of the defendants regarding their characterization of those text messages. /// /// ///
Case :-cr-000-rgk Document Filed /0/ Page of Page ID #: 0 II. CONCLUSION For the foregoing reasons, the Court should dismiss the indictment. In the alternative, the Court should impose evidentiary sanctions as set forth above. DATE: November, 0 Respectfully submitted, SEAN K. KENNEDY Federal Public Defender By /s/ John Littrell JOHN LITTRELL Deputy Federal Public Defender